QBE INSURANCE LTD v JANDE [1994] NSWCA 366

QBE INSURANCE LTD v JANDE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and SHELLER JJA 12 July 1994, 6 September 1994

[1994] NSWCA 366

INSURANCE — accident and sickness policy — temporary total disablement — requirement that insured be prevented from carrying out all normal duties — proof that insured performed minor non-heavy duties in shop — held: not total disablement but partial disablement- appeal allowed.

INSURANCE — policy of personal accident and sickness insurance — construction of — definition of "temporary total disablement" — alternative entitlements for "temporary partial disablement" — requirement for total disablement of prevention from carrying out "all the normal duties" of the occupation — insured engages in instruction of purchasers of his business — performs minor non-heavy duties in course of instruction — insurer denies benefits for total disablement — trial judge (Patten A-DCJ) awards benefits for temporary total disablement — on appeal by insurer to the Court of Appeal- held: The policy of insurance must be construed according to its language and purpose; (2) The construction of the provision in relation to total disablement obliged meaning to be given also to the definition of "partial disablement". Hooper v The Accidental Death Insurance Co (1860) 5 H and N 546; 157 ER 1297 distinguished; (3) Upon that basis and in the facts found, the insured was not suffering "temporary total disablement" but temporary partial disablement; (4) Appeal allowed.

Insurance Contracts Act 1984. Insurance Contracts Regulation, Reg17, and Reg18.

ORDERS

1) Appeal allowed;

2) Judgment and order, other than the order dismissing the cross claim and the order for costs, of Associate Judge Patten of 26 September 1991 set aside;

3) In lieu thereof, verdict for the plaintiff in the amount of $9,590 to take effect from 26 September 1991; and